UNITED DOMINIONS CORPORATION (NIG.) LTD. (APPELLANTS)
A. O. LADIPO (RESPONDENT)
(1971) All N.L.R. 104
Division: Federal Supreme Court
Date of Judgment: 12th March, 1971
Case Number: SUIT NO. S.C. 233/1966
Before: Lewis, Madarikan, Udoma, JJ.S.C.
Appeal from the High Court (Lagos).
(1) When an action is brought in detinue it is brought for the specific recovery of personal chattels wrongfully detained from the person entitled to the possession of them and for damages occasioned by the wrongful detainer.
(2) In this case, although the plaintiff had the physical possession of the car, he had not, once the Hire Purchase agreement was terminated, got the right or entitlement to possession so that once the actual possession was lost he was not entitled to bring an action in detinue against the owners of the car. The Hire Purchase Agreement conferred a limited interest in the car on the plaintiff/hirer, but with the termination of the Agreement that limited interest was itself terminated, and the owners had the immediate right to possession. The action was couched solely in detinue and as such should have been dismissed.
(3) The most the defendants might have been liable for was in damages for trespass by wrongful entry when they took the car but the evidence was by no means clear in regard to it. That, however, was not how the plaintiff either pleaded or presented his case and accordingly as he had no right of action in detinue his claim should have been dismissed.
Appeal allowed: Judgment of High Court set aside: Plaintiff's case dismissed.
Cases referred to:
Smart Brothers Ltd. v. Holt, (1929) 2 K.B. 303.
Salisu Barau v. Caleb Brett and Sons (Nigeria) Ltd., S.C. 400/67 of 17th May, 1968.
APPEAL FROM THE HIGH COURT (LAGOS).
SUIT NO. S.C. 233/1966.
Chief Williams (with him, Akesode) for the Appellants.
Atilade for the Respondent.
Lewis, J.S.C. (delivering the judgment of the court):-In Suit LD/382/67 in the Lagos High Court the plaintiff's writ read:-
"The plaintiff claims from the defendant the sum of Seven hundred and Fifty pounds (£750) being general damages for detinue of a car Austin Cambridge LH. 6645 sold to the plaintiff under a hire-purchase agreement or the return of the said car.
The said Car was seized by the defendant by reason of default of instalmental payment by the plaintiff but before its Sale the plaintiff's surety-the Federal Government had paid to the defendant the full balance outstanding on the purchase price.
In spite of the fact that the balance of the said purchase price had been completely paid by the said plaintiff's surety the defendant purported to sell the said car at undervalue.
WHEREOF the plaintiff claims as stated above."
On the 26th April, 1968, judgment was given in his favour for £400 general damages and 55 guineas costs.
The first point taken on this appeal by Chief Williams for the appellants is that under the hire-purchase agreement (exhibit C) the United Dominions Corporation (Nig.) Ltd., the present appellants, as owners were entitled to terminate the hiring by the plaintiff if there was non-payment of the required instalments. He referred us in particular to Clauses 6, 8, 9 and 12 of the hire-purchase agreement, though Clause 11 is also material and these read:-
"6. The goods are and shall remain the property of the Owner unless and until the Hirer exercises the option to purchase contained in the agreement after having become entitled so to do. All replacements and renewals of component parts and accessories and all additions and alterations forming an integral part of the goods made during the currency of this agreement shall be deemed to form part of the goods.
The Hirer will at all times allow the Owner reasonable facilities for inspecting the goods and access for this purpose to any premises in or upon which the goods may be. The Hirer shall punctually pay all rent, rates, taxes and outgoings in connection with any premises in or upon which the goods may be for the time being and if required to do so shall produce to the owner receipts for such payments.
8. Should the Hirer fail to pay the initial instalment of rent in full at the time when this agreement is made or to pay any subsequent instalment or other sum payable hereunder in full within ten days after the same shall have become due or if he shall die or have a Receiving Order made against him or be made bankrupt or call any meeting of or make any arrangement or composition with his creditors or if the Hirer being a limited Company shall call any meeting of its creditors or be wound up compulsorily or go into voluntary liquidation or have a receiver of any of its assets appointed or if the goods or any part thereof shall be seized under any execution or legal process issued against the Hirer or under any distress for rent or if the Hirer shall fail to observe or fulfil any term of this agreement or shall do or suffer anything whatsoever which in the Owner's opinion bona fide formed upon reasonable grounds will or may have the effect of jeopardising the Owner's right of property in the goods then and in each and every such case the Owner may forthwith and without any notice terminate the hiring; or, alternatively, by written notice (either served personally on the Hirer or sent to him by post at his usual or last known address) forthwith and for all purposes terminate the hiring and this agreement and thereafter the Hirer shall no longer be in possession of the goods with the Owner's consent.
9. Should the hiring be terminated by the Owner under Clause 8 hereof the Owner may without any notice retake possession of the goods and for this purpose shall be entitled freely to enter into and upon any premises occupied by or under the control of the Hirer, and notwithstanding the termination of the hiring, the Hirer shall be liable for all instalments of rent which shall then be in arrears and unpaid (together with interest thereon until payment at the rate of 8% per annum) and for any other sums then due or thereupon becoming due to the Owner under this agreement.
11. Should the hiring be terminated by the Hirer under Clause 10 or by the Owner under Clause 8 hereof the Hirer shall forthwith pay to the Owner either (a) such further sum as with the total amount of any instalments previously paid hereunder will equal two-thirds of the total hiring cost shown in the Schedule as agreed compensation for the depreciation of the goods or (b) the amount of all instalments and other moneys then already due hereunder whichever is the greater.
12. If and when all instalments and other moneys payable by the Hirer to the owner under this agreement shall have been duly paid and provided that the Hirer shall not have committed any breach of the provisions of this agreement then the Hirer shall have the option (but shall not be bound) to purchase the goods for the sum of one pound."
The defendants did so terminate in May, 1966, as had been found proved by the learned trial Judge. The effect therefore was to bring the hiring to an end and the appellants were entitled under the hire-purchase agreement to take possession of the car thereafter, as they in fact did in September, 1966. So far as the plaintiff was concerned his interest in the car was at an end though he remained liable under the terms of the hire-purchase agreement for the outstanding sums due. Instead, however, of pursuing further the claim against the plaintiff after his default on the instalments the appellants preferred to pursue the claim against the Federal Government of Nigeria who by a separate contract of guarantee, which was not put in evidence, had guaranteed the required payments of the plaintiff under the hire-purchase agreement, as he was at the time he entered into the agreement an officer in the Nigerian Police Force. Indeed he only fell into arrears in the payment of the instalments when he ceased to hold such office. There was evidence that the Federal Government of Nigeria in fact paid to the defendants the sum of £426-10s being the sum outstanding from the plaintiff to the defendants under the hire-purchase agreement. Whether or not subsequent to that the appellants sold the car, on the instructions of the Federal Government, was in Chief Williams' submission really quite immaterial to the plaintiff as his interest in the car ceased on the termination of the hire-purchase agreement. The plaintiff was never the owner of the car, only the hirer, and under the hire-purchase agreement he only had the right to become the owner if, after all the instalments and other moneys payable under the hire-purchase agreement had been paid and provided there was no breach of the provisions of the agreement, he exercised his option to pay one pound as the purchase price. This he of course never did as he had not paid all the instalments and had been in breach of the provisions of the agreement. Whether or not, therefore, the car was in fact sold for an under-value was no concern of his and he could, in Chief Williams' submission, have no claim against the appellants in regard to it once the hiring was properly terminated, as the learned trial Judge found it was.
Mr Atilade for the respondent submitted that there was a vital distinction between terminating the hiring and terminating the agreement. If the hiring was terminated then under clause 9 of the hire-purchase agreement the owner could retake the goods, but if the agreement was terminated then all rights under the agreement ceased and the owner must rely on his common law rights. He referred us to Smart Brothers Ltd. v. Holt (1929) 2 K.B. 303 and in particular to the words of Wright J. at page 308 when he said:-
"Notwithstanding the strenuous argument of Mr O'Connor, I agree with my Lord that the notice put an end to the agreement, leaving the plaintiffs with no right to repossess themselves of the goods under any special power granted by the agreement such as would be granted under clause 8(a) if they had availed themselves of that clause. Clause 8(b), on the contrary, though providing that rights of a personal character, such as claims for arrears of rent, should remain, had the effect of removing the goods from the ambit of the agreement; the goods remained the property of the plaintiffs, but the licence to the defendants had been revoked by the notice given under the agreement; the defendants had, after the notice, only such rights as flowed from that position at common law, that is, such rights as an owner of goods has as against a person who no longer has a right to the possession of the goods and who is holding without the owner's consent. The owner has, in such a case, no right of entry to retake possession; he can merely ask for delivery of the goods, and if refused delivery may fall back upon the aid of the court to give him possession in an action of detinue. I think in such a case it cannot be said that the goods are comprised in the hire purchase agreement at the material time, that is, the levy of distress, when, as here, the owner of the goods has previously terminated the agreement by a notice duly given, as required by its terms. In an action of detinue following upon such a refusal by the hirer to redeliver, the agreement of hiring under which the bailment was made would be irrelevant except as matter of history or inducement; 'the detainer is the gist of the action', as Lord Lyndhurat C.B. said in Gledstane v. Hewitt 1 Cr. & J. 565."
Mr Atilade referred us so far as termination of the agreement was concerned to paragraph 4(c) of the amended statement of defence which read:-
"Nothing further was heard from the plaintiff and on the 16th of May the defendant terminated the hire-purchase agreement in accordance with the provisions in that behalf contained therein and issued instructions for the seizure of the vehicle.",
and the learned trial Judge found that the agreement was terminated. That being so, in his submission, the provisions relied on by Chief Williams for termination of the hiring did not apply.
We think so far that Mr Atilade is quite right and that whilst the pleading of termination of agreement did not prove the termination without evidence the defendants could not derogate from their pleadings and offer evidence to the contrary without amending their pleadings and this was never done. In fact the defendants only witness stated that they terminated the agreement and we think the learned trial Judge quite properly therefore came to the conclusion that the agreement was terminated.
Chief Williams, however, then submitted that even accepting that he was wrong in his first submission and that the agreement, not the hiring, was what in fact was terminated, nonetheless, the effect of the termination of the agreement did not mean that the defendants ceased to be the owners. The plaintiff ceased to have the right to possession though he remained in physical possession. It followed in his submission that the owners were entitled to retake their goods and there was no evidence this was done against the plaintiff's wishes at the time, but that anyway once the owners had retaken the car they, as owners, could not be sued in detinue for having the possession of their own goods. It might be that they could have been sued for trespass, not to the goods but by wrongful entry, when they retook them but that was not how the plaintiff sued and he could not now change the nature of his claim which was in detinue.
Mr Atilade for his part submitted that on the authority of Smart Brothers Ltd. v. Holt (supra) the defendants did not get the right to retake the goods after the termination of the hire-purchase agreement without the consent of the plaintiff; that the plaintiff gave evidence that the goods were "seized" and this imported that it was against his wishes; that if it was against his wishes then the defendants had to have recourse to the courts to get leave to take the car and they were liable if they did not. Mr Atilade also referred to paragraph 5 of the statement of defence to show in what capacity the defendants claimed they were acting but Chief Williams rightly pointed out that paragraph 4(c) of the amended statement of defence, which we have quoted, superseded paragraph 5 of the statement of defence so that Mr Atilade could not rely on the earlier pleading. Nevertheless Mr Atilade submitted that as the plaintiff had the actual possession of the car after the termination of the hire-purchase agreement and as the owner only had the right to possession if he had the authority of the court to take back the car, the plaintiff could sue as he did in detinue. He also submitted that the defendants as owners having been admittedly paid their rights under the terminated hire-purchase agreement by the guarantors (the government) of the plaintiff, he could accordingly resist the taking of the car by virtue of the guarantee. He finally submitted that though the plaintiff could have sued in trespass he could also sue, as he put it, in a special kind of detinue arising out of the hire-purchase.
Neither the contract of guarantee between the plaintiff and government nor the contract of guarantee between the government and the defendants was put in evidence so clearly if Mr Atilade was to rely on the terms of either of such contracts their contents had to be proved and this was not done. The plaintiff was accordingly in our view in actual physical possession only, and whilst it may be that the defendants took back the car against the wishes of the plaintiff even so they were taking their own property and could not be liable in detinue. In paragraph 4(c) of the amended statement of defence, which we have already quoted, the defendants pleaded that on the 16th May, 1966, they not only terminated the agreement but also issued instructions for the seizure of the vehicle so it was not shown that they took back the vehicle only on the subsequent instructions on the 23rd May, 1966, of the government. The most that they might have been liable for was in damages for trespass by wrongful entry when they took it but the evidence is by no means clear in regard to that. That, however, as Chief Williams rightly submitted, was not how the plaintiff either pleaded or presented his case and accordingly as he had no right of action in detinue his claim should have been dismissed.
The learned trial Judge rightly quoted Halsbury's Laws of England Third Edition Volume 38 paragraph 1297 where it said:-
"In order to maintain an action of trover or detinue, a person must have the right of possession and a right of property in the goods at the time of the conversion or detention; and he cannot sue if he has parted with the property in the goods at the time of the alleged conversion.",
but in error he went on:-
"Having terminated the hire-purchase agreement and having been paid their full entitlements by the guarantor, the defendants could no longer claim any right of property in the car. In so far as the contract of guarantee has not been tendered in this case, the rights of the guarantor also could not be determined. The only person who can maintain an action in detinue in the circumstances of this case is the plaintiff."
As we have stated the plaintiff had in our view no right to maintain an action in detinue. We said, in Salisu Barau v. Caleb Brett & Sons (Nigeria) Ltd. S.C. 400/67 (unreported) of the 17th May, 1968:-
"When an action is brought in detinue it is brought for the specific recovery of personal chattels wrongfully detained from the person entitled to the possession of them and for damages occasioned by the wrongful detainer, and examples of how the claim should be brought can be seen in Bullen and Leake's Precedents of Pleadings, 11th edition, page 427."
Here though the plaintiff had the physical possession of the car he had not, once the hire-purchase agreement was terminated, got the right or entitlement to possession so that once the actual possession was lost he was not entitled to bring an action in detinue against the owners of the car. The hire-purchase agreement conferred a limited interest in the car on the plaintiff/hirer, but with the termination of the agreement that limited interest was itself terminated, and the owners had the immediate right to possession. The action was couched solely in detinue and as such should have been dismissed.
The appeal is accordingly allowed and the judgment of the High Court awarding damages of £400 together with fifty-five guineas costs is set aside and in its place we do order that the plaintiff's claim be dismissed with thirty guineas costs in the High Court to the defendants. The appellants are also entitled to their costs of this appeal which we assess at fifty-eight guineas.
Appeal allowed: Judgment of High Court set aside:
Plaintiff's claim dismissed.